Crain Burton Ford Co. v. Rogers

• Decision Date: 05 September 1984
• Docket Number: No. CA,CA
• Citation: Crain Burton Ford Co. v. Rogers, 674 S.W.2d 944, 12 Ark.App. 246 (Ark. App. 1984)
• Parties: CRAIN BURTON FORD COMPANY, Appellant, v. Jimmy Dale ROGERS, Appellee. 83-353.
• Court: Arkansas Court of Appeals

Page 944

674 S.W.2d 944

12 Ark.App. 246

CRAIN BURTON FORD COMPANY, Appellant, v. Jimmy Dale ROGERS, Appellee.

No. CA 83-353.

Court of Appeals of Arkansas Division I.

Sept. 5, 1984.

Daggett, Daggett & Van Dover by Robert J. Donovan, Marianna, for appellant.

The McMath Law Firm by Art Anderson, Little Rock, for appellee.

MAYFIELD, Judge.

This is an appeal from a decision of the Workers' Compensation Commission holding that the appellee's impotence was a result of a compensable back injury and that the surgical procedure for a prosthetic penile implantation was necessary medical treatment.

Appellee injured his back while working for appellant and underwent surgery in 1973. He subsequently developed bladder and bowel incontinence and impotence. It was determined that he was suffering from a demyelinating disease, thought to be either multiple sclerosis, primary lateral sclerosis, or amyotrophic lateral sclerosis. In a previous hearing the Commission had found that the disease had been either precipitated or aggravated by the back injury and that it was compensable. That decision was affirmed by the Arkansas Supreme Court in an unpublished opinion dated October 18, 1976.

As a result of that decision, appellee received treatment for his bladder and bowel condition. When these were stabilized to the greatest extent possible, treatment was begun for the impotence. After a series of tests, it was decided that the treatment of choice was a penile implant.

In this appeal the appellant's first argument is that there is no medical evidence in the record establishing a causal relationship between appellee's injury and his impotence. Appellee's doctors testified that the state of the art in testing is not yet sophisticated enough to determine with certainty that claimant's impotence is related to his back injury. However, appellee testified that he was 32 years old at the time of the accident, married, and had no problems of this nature prior to his injury. He said the impotence developed immediately after the injury and concurrently with numbness in his legs, the incontinence, and partial paralysis. While one doctor reported that he could not be "certain" that appellee's impotence was related to his injury, another doctor stated it was his opinion that the condition was secondary to appellee's preexisting disease. The Arkansas Supreme Court has already held that appellee's injury and surgery "precipitated or aggravated" his preexisting disease and cited McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W.2d 416 (1961), for the proposition that disability from such an aggravation is compensable. Moreover, it is not essential that the causal relationship between the accident and the disability be established by medical evidence, Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974), or that the evidence be medically certain, Colonial Nursing Home v. Harvey, 9 Ark.App. 197, 657 S.W.2d 211 (1983). We think there is substantial evidence to support the finding that there was a causal relationship between appellee's injury and impotence.

Appellant argues secondly that the medical procedure requested is not reasonable or necessary. Appellant says that since appellee has one child and there is no evidence that he desires any more, since he has been impotent for ten years and there is no evidence of any marital discord related to his condition, and since there is no evidence that appellee has suffered any psychological damage because of his impotency, the procedure is not medically necessary. Ark.Stat.Ann. § 81-1311 (Repl.1960), in effect at the time of appellee's injury, provided in pertinent part:

The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during the period of six months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require. [Emphasis added.]

There seem to be three schools of thought in regard to the issue before us. One line of cases allows medical treatment that will help restore the claimant's earning power. An example of such a case is Los Angeles County v. Industrial Accident Commission of California, 202 Cal. 437, 261 P. 295 (1927), in which cosmetic surgery to repair disfigurement to claimant's eye and cheek was ordered to improve his appearance and increase his earning power. See also Ranson v. Orleans Parish School Board, 365 So.2d 937 (La.Ct.App.1979) (wig allowed schoolteacher). Cf. Eckert v. Yellow Freight Systems, Inc., 170 Ind.App. 196, 351 N.E.2d 924 (1976) (cosmetic surgery refused for facial scars). Some workers' compensation statutes limit compensation for disfigurement to the face and head. See Ark.Stat.Ann. § 81-1313(g) (Repl.1976). Under such a statute, Whitaker v. Church's Fried Chicken, Inc., 373 So.2d 1371 (La.Ct.App.1979), held it was error to award damages for disfigurement in an area other than the face and head.

A second line of cases requires the carrier to continue to pay for custodial care required as a result of the compensable injury even if no further improvement in the claimant's condition is expected. In Hamilton v. Boise Cascade Corp., 84 Idaho 209, 370 P.2d 191 (1962), a 72-year-old employee fell and broke his hip. It was...